Monday, 28 February 2011

Bristish Sky Broadcasting files appeal against OFCOM on TUTV dispute resolution decision

Sky in addition to its appeal on OFCOM's wholesale must offer obligation it imposed it with, has filed an appeal before CAT (see the summary of appeals), challenging OFCOM's decision which denounces the agreement between Sky and TUTV as far as a term was enacted whereby distribution of the Channels via Conditional Access Modules (CAMs) was excluded (see also a previous post on the case).

Commission's Art. 7 Comments to Polish regulator on fixed call termination

The Commission made its comments on a dispute resolution procedure pending before UKE regarding the setting of fixed call termination prices between the Polish incumbent and Hikimoritech. The Commission noted that the latter undertaking was not included in the market review and thus urges UKE to conduct a review of the market. The setting of prices through a dipsute resolution procedure is inadequate to meet the requirements of the Access Directive which requires a proper review of the market. The Commission moreover, notes that the fixed call termination prices between the incumbent and competitive providers are set not following the as efficient criterion and are not symmetric. Thus, the prices to be set under the aforementioned dispute resolution procedure will be again in the wrong direction, not following a proper glide-path. A last comment, is that the Call termination Recommendation when it refers to a transitional price assymetry, it does that in relation to mobile call termination charges only, since in the fixed call termination market, new netrants may achieve low unit costs (see the decision).

Art. 7 Comments to Belgian NRA on fixed transit services market review

BIPT found that the market of transit services in the public telephone network provided at fixed locations in Belgium met only the first of the three-criteria test and thus opted for deregulating the market. The Commission did not make any comments on the NRA's decision as in any case the market is withdrawn from the 2007 Recommendation (see the decision).

Friday, 25 February 2011

Commission approves modification in state aid measure for the broadband development of white areas in Germany

The European Commission did not object the alteration in terms of budget (from 10 to 50 million) which is directed to the white areas of Saxony in Germany for the development of a satisfactory broadband infrastructure.

UK regulator consults in the forthcoming revision of the authorisation and universal service regime

OFCOM has launched a consultation in view of the forthcoming revision of the general conditions and universal service regime in place since the new European telecoms framework has to be transposed by 25 May 2011. The consultation will last till 7 April 2011.

Thursday, 24 February 2011

CJEU rules in Teliasonera Sverige

Teliasonera was obliged at the end of the 90s and the beginning of the 00's to offer LLU under the LLU Regulation. It also offered ADSL in the wholesale level even though it was not required to do so. It then faced allegations for margin squeeze by wholesalers that bought its ADSL product and the case reached finally the CJEU though a reference for prelimnary ruling.

The CJEU finds that (paras 113,114):

A] When assessing whether such a practice is abusive, all of the circumstances of each individual case should be taken into consideration. In particular:
1) as a general rule, primarily the prices and costs of the undertaking concerned on the retail services market should be taken into consideration. Only where it is not possible, in particular circumstances, to refer to those prices and costs should those of competitors on the same market be examined, and
2) it is necessary to demonstrate that, taking particular account of whether the wholesale product is indispensable, that practice produces an anti-competitive effect, at least potentially, on the retail market, and that the practice is not in any way economically justified.

B] The following factors are, as a general rule, not relevant to such an assessment:
1)the absence of any regulatory obligation on the undertaking concerned to supply ADSL input services on the wholesale market in which it holds a dominant position;
2) the degree of dominance held by that undertaking in that market;
3) the fact that that undertaking does not also hold a dominant position in the retail market for broadband connection services to end users;
4) whether the customers to whom such a pricing practice is applied are new or existing customers of the undertaking concerned;
5) the fact that the dominant undertaking is unable to recoup any losses which the establishment of such a pricing practice might cause, or
6) the extent to which the markets concerned are mature markets and whether they involve new technology, requiring high levels of investment.

Some points:

1) the perception of the margin squeeze as a stand alone abuse and the irrelevance of the ex ante regulation in place in the assessment provided under the Deutsche Telekom ruling are more or less preserved.

2) Although inidpensality is elevated through the Courts summary of conclusions, to a major factor to be sought for when assessing abuse, in the main body of the decision it is rather depicted as one of the many factors to be taken into account.

3) No specific benchmarks are adopted. The Court by referring to notions like 'selling at a loss', 'negative or insufficient to cover costs' e.t.c. does not contribute at all to legal certainty. It is up to the Court to adopt or not adopt specific benchmarkes, but when referring to economic notions i think it should be precise on the terms and what they main.

4) The investment criterion in high tech markets is not considered by the Court as a relevant factor to be taken into account in the assessment. Well, here i am puzzled. The Court does make in the main body of its decision some concessions towards an effect-based approach. The economic justifiability of the price and the objective justifications are acknowledged to play role in the assessment. How is it possible then not to take into account the risk and the financial burden incurred in such huge investments. It is this decision that should put the proponents of the lifting of ex ante regulation in regulated markets into despare. Even in the ex ante sphere, the significant risk and burden of these investments is a factor of growing concern.

5) The as efficient criterion is adopted again although in telecoms for example ex ante regulation opts several times for the reasonably efficient.

and 6) according to the Court significantly states that "an undertaking which engages in a pricing practice which results in a margin squeeze on its competitors does not necessarily suffer losses".

AG Trstenjak's opinion in Deutsche Telekom case - Directory services

In this case, Deutsche Telekom was called under national law to offer its database which contained also the details of non-subscribers to other directory enquiry services providers. The AG concluded (in french)fisttly that such a national instrument, which provides for the obligatory provision of the providers' databases even when including details of subscribers which are not theirs to other directory services providers, is not against the Universal Service Directive subject to the requirement that this is a general obligation and does not depend on whether the obligations is imposed on a SMP undertaking or whether there is sufficient competition in the market because in the latter case, the NRA's independence requirement is breached.

Secondly, the AG stated that the said law is not also against the ePrivacy Directive to the extent that the consumer whose details must be provided from the undertaking to which he is a subscriber, to another undertaking, is aware of this provision, of the entities that will get his data, and on the content and purpose of use of his details. The consumer is such a case may not object the obligatory passing of his details to other providers of directory services.

General Court's ruling in FIFA and UEFA cases

The GC in T-385/07, T-55/08 and T-68/08, ruled that all the FIFA World Cup and the UEFA European Champions League matches met the requirements to be inculded in the list of 'events of major importance to society' under the TVWF Directive so that these matches should be offered to free-viewing broadcasters. On the other hand, it is up to these broadcasters whether they will decide to braodcast these events or not (see also contentandcarrier.eu).

CJEU's ruling in The Number (UK) and Conduit Enterprises case

In this case, the Court of Appeals in the UK referred a quaestion to the CJEU, by which it sought to clarify whether the regulatory obligation imposed on BT, within the context of its universal service, to provide its database to other undertakings operating a directory enquiry service or directory in fair, objective, cost oriented and not unduly discriminatory terms, is compatible with EU law and in particular with the Universal Directive primarily as well as with the Framework and Authorisation Directives.

The CJEU ruled that such an obligation to provide a database in the wholesale level under terms set by the Member State, is contrary to the provisions of the Universal Service Directive. It stated explicitly that 'Article 8(1) of the Universal Service Directive permits Member States, where they decide to designate one or more undertakings under that provision to guarantee the provision of universal service, or different elements of universal service, as identified in Articles 4 to 7 and 9(2) of that same directive, to impose on such undertakings only the specific obligations, provided for in the directive, which are associated with the provision of that service, or elements thereof, to end‑users by the designated undertakings themselves'.

Commission v Belgium - INSPIRE Directive

The CJEU ruled that Belgium did not take the necessary legal measures to transpose the INSPIRE (Infrastructure for Spatial Information) Directive within the prescribed time period (see the decision, in french).

Friday, 18 February 2011

Commission approves state aid measures provided for the development of NGNs in white areas in Austria

The Commission approved the state aid schemes for the development of Next Generation Networks in some of Austria's "white areas" (see the press release).

Thursday, 17 February 2011

Commission urges States to speed up on MSS

The Commission urges Member States to speed up the process of having the necessary regimes in place for the deployment of Mobile Satellite Services (MSS) across the EU according to Commission Decision 449/2009. As Neelie Kroes states: Member States should urgently take all measures necessary to allow the introduction of mobile satellite services throughout the EU. Mobile satellite services have an important role to play in providing innovative services to businesses and citizens across Europe, including in rural or remote areas, and in meeting our Digital Agenda targets of making broadband available to everyone in Europe. MSS should be in place by May 2011 (see the press release).

Greek NRA launches consultation on MSS

EETT launched a consultation on the framework for the authorisation of the Mobile Satellite Services (MSS) foressen in a pan-European level in the Commission Decision 449/2009 (see the document of the consultation and the press release both in greek).

Greece referred to the CJEU for the caps imposed on shareholders or potential shareholders of "strategic companies"

Greece was referred to the CJEU since a law imposes caps on shareholders or potential shareholders who wish to acquire more than 20% in a so called "strategic company. "The law's provisions stipulate that only the State may exceed this threshold, unless prior approval has been granted by the Inter-ministerial Privatization Committee. They also state that certain important corporate decisions, as well as certain decisions concerning specific management matters, require the Minister of Finance's approval in order to be validated. In addition, the Greek law fails to clearly define which companies and sectors are bound by these mechanisms, or could be in the future".

The Commission finds thus that this law is in breach of EU rules on the free movement of capital (see the press release).

It shall be reminded that the case started been scrutinised when a greek holding company sought to acquire more than 20% in OTE, the national telecoms incumbent. At a later stage the State agreed to let Deutsche Telekom acquire 25% of OTE.

Italian NRA's review of the broadcasting transmission services market

AGCOM as in its communication to the Commission (see the post on the Commission's art.7 comments), retained in its final market review (in italian) the regulatory obligations imposed on RAI and RTI in the national analogue terrestrial market till 31 December 2012 when the digital switch-off takes part. As far as the other markets identified, since they did not meet as well the second criterion of the three-criteria test, no obligations will be imposed.

Wednesday, 16 February 2011

Art. 7 Comments to the Bulgarian NRA on the latter's assessment of the WBA and WIA markets

CRC found the national incumbent having SMP in the Wholesale Broadband and the Wholesale Network Infrastructure Access markets which met the three criteria test. The Commission "invited CRC to extend the scope of the cost-orientation remedy to the services of access to BTC's dark fibre infrastructure and to all items necessary to allow local loop and sub-loop unbundling". The Commission moreover stressed that the NRA should probably encompass LAN and CaTV in the market definition should regulatory developments make it easier for firms operating these networks to extend their services geographically (see the decision).

Art. 7 Comments to the Italian NRA on its MTR cost model

The Commission had no comments to make on AGCOM's new MTR cost model which follows (see the decision):

"The current notification concerns the BU-LRIC cost model, established by AGCOM to determine the wholesale charges for mobile voice call termination on the mobile networks in Italy. The BU-LRIC model assumes a network of a hypothetical efficient operator, entering the market today. Therefore the model does not reflect the actual, historical costs of existing operators. In line with the Commission's Termination Rates Recommendation the model assumes an efficiency threshold of 20% market share at the retail level. With regard to depreciation AGCOM has chosen the tilted annuity methodology.

With regard to the relevant costs taken into account, AGCOM excludes all retail marketing costs; at the wholesale level it excludes the costs not linked to termination services, i.e., only those network elements are taken into account, which are necessary to supply additional capacity to carry the termination traffic of third party operators. More specifically, AGCOM maintains that certain parts of the backbone network and the Mobile Switching Centres (MSC) are network elements necessary for supplying the termination traffic and must be taken into account for the purpose of network dimensioning and are therefore relevant for the provision of call termination. With regard to the costs of radio frequencies, such costs are not included in the BU-LRIC model, as they are not considered relevant for the provision of termination services. Nevertheless AGCOM may consider the costs of supplementary frequencies if they are necessary and relevant for the provision of termination services.

AGCOM will reconcile the results of the BU-LRIC model with the actual, audited cost data of the mobile operators. The reconciliation is not a mechanical process aimed at adjusting the results of the BU-LRIC, but aims at verifying the reliability of the results derived from the model."

Commission's Art. 7 Communication to the Danish NRA on the review of retail telephone services markets

NITA found that the national and international telephone services market provided at a fixed location and which were withdrawn from the 2007 Recommendation do not qualify the three-criteria test and thus should be deregulated. The Commission had no comments to make in its decision.

Commission's Art. 7 Communication to the Cypriot NRA on the review of retail telephone services markets

The Cypriot NRA found that the national incumbent, CYTA, possesses SMP in the local and national telephone services market and by meeting the three criteria test, the market should continue to be regulated even though it is withdrawn from the 2007 Recommendation. As far as the international telephone services market is concerned, the NRA found that the first criterion was not probably (?) met and thus stated that it will ease up CYTA's regulatory obligations and withdraw them completely by January 2012. The Commission on the other hand urged (see the decision, in greek) the NRA to closely monitor the market so that a soon as effective competition is established to withdraw all obligations taking into account that the provision of naked DSL services by alternative operators was initiated in just 2009 so that the latter may thus provide Voice over Broadband services effectively in the future.

Commission approves state aid measures provided for the development of NGNs in white areas in Germany

The Commission approved the state aid schemes for the development of Next Generation Networks in some of Germany's "white areas", namely the region of Hessen and the region of Landkreis Rotenburg (Wümme). The Commission moreover approved the proposed extension of the state aid scheme in Bavaria.

Brussels Court of Appeals confirms mobile termination rates

The Court rejected Mobistar's and Base's requests for suspension of the MTR's set by BIPT and thus as in the latter's press release (in french) is stated, the Court brought an end to the assymetry of termination rates.

British Sky Broadcasting Group's acquisition of the Cloud Networks Limited proceeds

The UK's watchdog, the OFT, stated that the said merger does not qualify for investigation for failing the turnover and supply test dictated by the Enterprise Act 2002. The acquisition will thus proceed as normal (see the press release).

Court Week 14-18/2/2011

This week we have the delivery of several important decisions and opinions:

1) On 17/2, the judgment in the TeliaSonera Sverige case concerning margin squeeze in the provision of wholesale as against retail ADSL,

2) On 17/2, the judgment on the Number (UK) and Conduit Enterprises and the opinion on the Deutsche Telekom cases, which both concern the provision of subscriber information to directory enquiry services in cost-oriented terms,

3) On 17/2 again, the judgments in Fifa I, II and the UEFA cases, all related to the issue of the listing of certain sport events in the British and Belgian "list of events of major importance to society" as the TVWF Directive provides for.

4) And lastly, the judgment in Commission v Belgium, on the latter's failure to transpose the INSPIRE (Infrastructure for Spatial Information) Directive within the prescribed time period.

For more info and thoughts on the cases you may also advise contentandcarrier.eu.

Tuesday, 15 February 2011

UK's NRA launches consultation on Number Translation and Premium Rate Services pricing

OFCOM launched a consultation on Number Translation Services (NTS) and Premium Rate Services (PRS) pricing (see the document).

Comments received on the Irish NRA's consultation on the inclusion of the 1800 MHz Band into the Proposed joint award of 800 MHz and 900 MHz Spectrum

ComReg made public the comments received on its consultationn whereby it proposed the inclusion of the 1800 MHz in the 800MHZ and 900MHz joint award (see the document).

European Commission approves acquisition of Draka Holding by Prysmian

Both companies are involved in the business of the development, design, production, supply and installation of cables in the energy and telecoms sector. The Commission cleared the acquisition owing to the significant fragmentation of the market, even though Prysmian will become the leading optical fibre (terrestrial) supplier worldwide (see the press release).

FCC modernises Universal Service and Inter-Carrier Compensation

The US Authority is set to modernise the universal service regime in place and the inter-carrier compensation regime. For further info on this development you may advise the Notice of Proposed Rule Making, President Genachowski's statement, the FCC's news release, telecomlawmonitor.com and commlawblog.com.

UK's NRA issues notice of proposed variations of the Wireless Telegraphy Act in relation to 3g licenses in the 2100 MHz

OFCOM's notice of proposed variation of 2100 MHz Third Generation Mobile Wireless Telegraphy Act Licences, entail mainly (see OFCOM's document):
- "by 30th June 2013 the licensee must provide an electronic communications network that is capable of providing mobile telecommunications services to an area within which at least 90% of the population of the United Kingdom lives and with a 90% probability that users in outdoor locations within that area can receive the service with a sustained downlink speed of not less than 768kbps in a lightly loaded cell,
- the licence will continue in force unless or until revoked by OFCOM" and OFCOM may revoke the license "(i) for spectrum management reasons on not less than 5 years’ notice, such notice not to be given before 31st December 2016, or (ii) in accordance with their powers under the Wireless Telegraphy Act 2006,
- that the licensee is to pay an annual charge for the licence that reflects the full market value of the frequencies in the 2100MHz band in respect of periods following 31 December 2021,and
- a provision relating to spectrum trading".

Cyprus Supreme Court finds unconstitutional provisions of the law transposing the Data Retention Directive

The Supreme Court of Cyprus declared unconstitutional some of the provisions of the national law transposing the Data Retention Directive. The case decided by the Court concerned the procedure by which Cypriot police was making use of civilians' data for the purposes of investigating crimes (see the Cyrpus Mail and EDRI).

Monday, 7 February 2011

Belgium's 3g and 4g auctions

BIPT, the Belgian NRA has launched a very interesting site focusing on the 3g and 4g auction awards to be taking place late this year (see also the press release).

Moldova's new General Authorisation and Licensing Regulations

Moldova's NRA has issued new General Authorisation and Licensing Regulations (see the press release). The General Authorisation regime is being applied since 2008 and was now renewed.

NB: Even though i am not familiar with Moldova's telecoms status legal-wise and business-wise, it is interesting to see the NRA of this country keeping its citizens up to date on the regulatory developments and moreover providing informative content in English (it is in any case the global language, whether we like it or not) while other European NRAs (seemingly more important) do not do any of these.

European Commission's consultation on collective redress in competition law

The European Commission has launched a consultation regarding the future of collective redress in antitrust law suits in Europe. The consultation serves as an additional point in the discussion of having harmonisation throughout Europe on the subject (see the press release).

Regulation on interoperability of spatial data sets and services

Regulation 102/2011 amends Regulation 1089/2010 implementing Directive 2007/2/EC of the European Parliament and of the Council as regards interoperability of spatial data sets and services.

UK's Competition Commission reviews its telecom appeals' procedure

The CC is reviewing its procedural framework on telecom appeals (see the press release). "Under section 193 of the Communications Act 2003, telecoms companies can appeal to the Competition Appeal Tribunal (CAT) against price control decisions made by Ofcom. The CAT is then required to make a reference to the CC if there is a dispute on pricing issues". The CC has issued a draft guidance and awaits for responses on its consultation by 4 March 2011 (see also the report of the review).

Friday, 4 February 2011

Molodova's incumbent adjusts its tariffs to abstain from cross-subsidy under the auspices of the NRA

Moldova's NRA states it supports JSC MoldTelecom's tariff adjustments, so that cross-subsidy will be less easy to occur and thus competition in the market of fixed calls may be stimulated (see the press release).

French NRA launches consultation on evaluation of net cost methodology in universal service

ARCEP has launched a consultation on the evaluation of the methodology followed to assess the net costs involved in providing the universal service (see the document of the consultation, in french).

Portuguese NRA issues draft decision on net cost and excessive burden in universal service

ANACOM has issued a draft decision on the definition of the concept of excessive burden and on the methodology for calculating the net costs of the universal service (not available yet but see the press release and the study prepared by Wik for ANACOM on the issue).

Thursday, 3 February 2011

The French NRA reminds consumers that price increase in their products due to increase of VAT enables them to cancel their agreement

The increase of VAT in certain products, amongst other in triple-play bundles and mobile products, means that if these charges pass on to consumers, enable the latter to revoke the agreement concluded with their service providers, since in such instance a unilater price increase takes place (see ARCEP's press release).

Austrian NRA accepts in first reading, the incumbent's reference offer on virtual unbundling

TKK accepted the contractual offer to be offered by A1 Telekom as regards the virtual unbundling obligation imposed on its NGN and abstained from putting the undertaking under surveillance. The Authority will now, scrutinise more thoroughly the reference offer to give the final ok (see the press release). It shall be reminded that the Authority had rejected the first reference offer proposed (see an older post).

Portuguese and Libanese NRAs sign co-operation agreement

After the co-operation agreement signed between the NRAs of Morocco and Portugal, ANACOM, the Portuguese NRA signs another co-operation agreement with Libanon, and thus showing its international oriented profile (see the press release).

CJEU rules against France on INSPIRE Directive compliance

The Court ruled that France did not comply with the INSPIRE (Infrastructure for Spatial Information in the European Community) Directive.

Advocate General delivers her opinion on Football Asociation Premier League

AG Kokott supports that the territorial restriction on conditional access decoding cards acts against EU law. Consequently, according to her opinion a conditional access card bought in Greece and used in the UK as in the present case happened, is lawfull even though the rightholder may have imposed territoral restrictions on broadcasters across EU member states. The AG interestingly notes that in such a case we might have an axhaustion of rights even though the access card does not enbody a good but the ability to enjoy a service (see also out-law.com).

Wednesday, 2 February 2011

Greek Supreme Administrative Court finds unconstitutional a provision in the Greek Telecoms Law Act

Σ.τ.Ε found in its 3919/2010 decision, art.67 of the Law 3431/2006 unconstitutional. The provision provides that all decisions of the Greek NRA are subject to appeal before the Administrative Court of Appeals and then may be appealed before Σ.τ.Ε. The Supreme Court ruled that as far as regulatory decisions are concerned (as opposed to indivdual administrative decisions), they may not be introduced as availing Administrative Courts with the power to reform the NRA's regulatory decision (see parts of the decision, as published in constitutionalism.gr, in greek). The reform of the regulatory decisions adhere to the competence of the Administration and thus cannot be performed by the Courts.

The problem generated by the decision (although it may stand well from a legal point of view), is that subjects that want to question an EETT's decision will be unsure on which legal introductory process they will follow. The following are given from my personal perspective on the said (not entirely clear) decision.

If someone wants to question a regulatory decision, the only way, is by asking its annulment which means that he may not annul the decision by raising objections on the substance of the dispute. This means that if then the regulatory decision is anulled, it will be returned to the Greek NRA to issue another one following the Courts findings (since the Courts do not enjoy competence on reforming the Administration's regulatory decisions).

If someone, on the other hand, seeks to question an individual administrative decision, then he must be really carefull as he may indeed appeal it and request its reform by the Court but things are not entirely clear on how the Court will react to objections related to the substance of the dispute and not just the typical part of it (like competence, following the constitutional requirements, publication etc.).

Greek NRA rejects incumbent's product

EETT has rejected OTE's product "180 or 160+20" whereby 180 minutes were provided from fixed to fixed or 160 from fixed to fixed and 20 from fixed to mobile after paying 20€, since OTE holds SMP in any related market to that product (EETT's decision, in greek).

UK's NRA consultation on spectrum trading

OFCOM has launched a consultation on the possibility of seeing spectrum trading in the 900/1800/2100 MHz (see the document of the consultation).

Tuesday, 1 February 2011

French Court overturns fines imposed on France Telecom and SFR

The two companies, had engaged according to the French Competition Authority in predatory pricing blocking the entrance of competitors in the mobile market. The French Court of Appeals found that no sound evidence could support the Authority's findings (see bloomberg.com).

Israel meets Data Protection Directive's standards

The European Commission decided that the State of Israel provides adequate protection of personal data with regard to automated processing of personal data for the purposes of Article 25(2) of Directive 95/46/EC.